Lord v. Grow

• Decision Date: 06 May 1861
• Citation: 39 Pa. 88
• Parties: Lord <I>versus</I> Grow.
• Court: Pennsylvania Supreme Court

39 Pa. 88

Lord versus Grow.

Supreme Court of Pennsylvania.

May 6, 1861.

ERROR to the Common Pleas of Susquehanna county.

W. & W. H. Jessup, for plaintiff.—It is in evidence that the difference between winter and spring wheat, though very material

in the results which flow from using them as seed, cannot be ascertained by inspection. It was purchased and sold for a purpose, to wit, for seed as spring wheat, and it is claimed that there is an implied warranty that it was of the kind sold: citing Jones v. Bright, 5 Bing. 533; Borekins v. Bevan, 3 Rawle 42; Jennings v. Graatz, 3 Id. 168; Shepherd v. Kain, 7 E. C. L. R. 82; Bridge v. Wain, 2 Id. 486; Borrodale v. Brinton, 4 Id. 202; Brown v. Edgington, 40 Id. 371; Shepherd v. Pybus, 42 Id. 482; Hastings v. Lavering, 2 Pick. 214; Bradford v. Manly, 13 Mass. 139; Williamson v. Allison, 2 East.

This is a case, not of deceit, but of implied warranty, and therefore there is no question of scienter on the part of defendants. The court were not justified, under the evidence, in taking the case from the jury.

R. B. Little contended that, under the facts of the case, the law of caveat emptor applied, citing McFarland v. Newman, 9 Watts 56. The court does not exercise guardianship over purchasers who, instead of requiring an express warranty, trust to their own judgment, and buy on inspection. The cases in 3 Rawle, are cases of sale by sample. See, also, Carson and MKnight v. Baillie, 7 Harris 375; Welsh v. Carter, 1 Wend. 185; Caldwell v. Smith, 4 Dev. & Bat. 64; Barnet v. Stanton, 2 Alabama 195; Salisbury v. Stainer, 10 Wend. 159. The difficulty in distinguishing between winter and spring wheat, furnished a strong reason for requiring an express warranty. See Hart v. Wright, 17 Wend. 267.

No man would willingly warrant as to variety in a sale like this, especially where there is no difference in value, and a warranty is not to be implied.

The opinion of the court was delivered, May 6th 1861, by STRONG, J.

We have here the bald question whether, in sales of personal property on inspection, without express warranty, the law presumes an engagement on the part of the vendor, that the article sold is of the species contemplated by the parties. No doubt there is such an undertaking where sales are made by sample. In such cases, the vendor warrants that the bulk of the article shall correspond in kind with the sample. The tendency of the modern cases has also been to the doctrine that in sales of articles in regard to which the seller is presumed to have superior knowledge, there is a warranty that the thing sold shall be in kind what it is represented to be. Illustrations of this are found in sales of wines by wine merchants, of jewels by a jeweller, and of medicines by a druggist. In this class of cases, the buyer and the seller do not deal on equal terms. The vendor is professedly an expert. His trade invites confidence in his representations, and confidence is usually reposed. So far, in modern decisions, there has been a departure from the rule laid down in Chandelor v. Lopus.

The case before us is not one of...